Points of law: Negligence

Question 1

Tort law

Answer 1

A civil wrong arising from an act or failure to act, independently of any contract.

Question 2

4 Principles of Negligence:

Answer 2

On the balance of probabilities:
-The defendant owed a duty of care to the claimant.
-The defendant breached the duty of care.
The defendants breach caused the damage.
-The damage suffered by the claimant was not too remote.

Question 3

Donoghue v Stevenson (1932)

Answer 3

Every person owes a duty of care to their neighbour who could be anyone reasonably foreseen to be injured by their act or omission.

Question 4

3 Stage test (all must be met)

Answer 4

-Was the harm or loss caused reasonably foreseeable?

-Was there a sufficient relationship of proximity between the claimant and the defendant?

-Was it ‘fair, just and reasonable’

Question 5

Margereson v JW Roberts (1996)

Answer 5

There is more likely to be a duty of care if the harm or loss caused was reasonably foreseeable.

Question 6

Evans v Triplex Safety Glass Company Ltd. (1936)

Answer 6

Manufacturers owe a duty of care not only to the immediate purchasers but also to their end-users or consumers of their products.

Question 7

Home office v Dorset Yacht Co. (1970)

Answer 7

One person is under no duty to control another unless there is a special duty of care.

Question 8

Topp v London Country Bus (South West) Ltd. (1993)

Answer 8

One person does not have a responsibility for the acts of a third party.

Question 9

Marc Rich v Bishop Rock Marine (1995)

Answer 9

‘Fair, just and reasonable’

Question 10

Weller v Foot and Mouth Research Institute (1966)

Answer 10

Pure economic loss is not recoverable.

Question 11

Hedley Byrne v Heller (1964)

Answer 11

Pure economic loss from negligent misstatement is recoverable.

Question 12

White v Jones (1995)

Answer 12

Pure economic loss from negligent omission is recoverable.

Question 13

Nettleship v Weston (1971)

Answer 13

The defendant must act with the degree of care and skill expected from a reasonable and prudent person in the same circumstances.

Question 14

Orchard v Lee (2009)

Answer 14

A child is only held to the standard of a reasonable child of his age rather than a reasonable adult.

Question 15

The lady Gwendolyn (1965)

Answer 15

Skilled defendants are not judged by a higher standard.

Question 16

Bolam v Friern management (1957)

Answer 16

The defendant must act with the degree of care and skill expected from other professionals in the same field.

Question 17

Bolton v Stone (1951)

Answer 17

A reasonable person is not usually expected to take precautions against something where there is only a small risk of it occuring.

Question 18

Paris v Stepney Borough Council (1951)

Answer 18

A reasonable person is expected to take greater steps if the seriousness of harm is particularly great.

Question 19

The Wagon Mound No2. (1967)

Answer 19

If the seriousness of harm is particularly great, even though it is unlikely but the cost of reducing them is low, then a reasonable person would mitigate the risk.

Question 20

Latimer v AEC Ltd. (1953)

Answer 20

An employers duty to provide a safe working environment does not extend to eliminating all risk entirely, but rather to take reasonable precautions to mitigate those risks to a reasonable extent.

Question 21

Watt v Hertfordshire County Council (1954)

Answer 21

It is not a breach if a defendant takes reasonable risks in an emergency situation.

Question 22

The Bank of Montreal v Gresham (1930)

Answer 22

If the defendant acted in accordance with general practise, the defendant was not negligent. However the neglect of duty does not by repetition cease to be negligent of duty.

Question 23

Factual Causation

Answer 23

There must be a factual link between the claimant and defendant in the chain of causation.

Question 24

The ‘But for’ test

Answer 24

The claimant must prove that negligence caused the injury or loss sustained.

Question 25

Barnett v Chelsea and Kensington Hospital Management Committee (1969)

Answer 25

If the damage would not have happened ‘but for’ the action of the defendant then it is the cause of damage.

Question 26

Wilsher v Essex Area Health Authority (1988)

Answer 26

In cases of multiple potential causes of harm, claimants must establish that the defendants actions were the probably cause of harm or a significant contribution to the harm suffered.

“Balance of probabilities”

Question 27

‘Novus Actus Interveniens’
‘A new intervening act’

Answer 27

• An act or event that breaks the casual connection between a wrong or crime committed by the defendant and subsequent happenings

-The new event relieves the defendant from the responsibility for the happenings.

Question 28

‘Novus Actus Interveniens’ (A new intervening act) - The three types

Answer 28

• Natural event
• Act of a third party
• Unlawful/unreasonable conduct by the claimant.

Question 29

The Carslogie (1952)

Answer 29

Defendants cannot be held liable for loss that was sustained as a result of a natural event.

Question 30

Baker v Willoughby (1971)

Answer 30

If a third party breaks the chain of causation then the defendant is not liable.

Question 31

McKew v Holland (1969)

Answer 31

If unreasonable conduct breaks the chain of causation then the defendant is not liable.

Question 32

The Wagon Mound No.1 (1967)

Answer 32

There is only negligence if the damage is not too remote. (has to be foreseeable)

Question 33

The “Egg-shell skull” rule.

Answer 33

• You must take your victim as you find them
• If a victim has a susceptibility to weakness or abnormality (a thin skull or weak heart) and suffers a greater injury as a result, the defendant will be liable to the full extent of the injuries
• …even if it is greater in extent and of a different kind to that foreseeable.

Question 34

Smith v Leech Brain (1962)

Answer 34

Employers are liable for all the consequences to their negligence, even if a pre-disposition to the injury makes the outcome worse than usual.

Question 35

Jones v Live Quarries (1952)

Answer 35

A person is guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable man he might get hurt.

Question 36

Pitts v Hunt (1990)

Answer 36

You cannot have 100% contributory negligence

Question 37

Capps v Miller (1989)

Answer 37

If you breach a statutory regulation then there is contributory negligence.

Question 38

Limerick v French (1993)

Answer 38

The burden is on the defendant to prove that the claimant knew the defendant was unfit to drive.

Question 39

Gough v Thorne (1966)

Answer 39

A child is generally not guilty of contributory negligence.

Question 40

Smith v Baker (1891)

Answer 40

Even if you consent to work, you do not consent to a lack of care.

Question 41

ICI v Shadwell (1965)

Answer 41

An employer is able to rely on volenti non fit injura as a complete defence to negligence when the employees act in deliberate neglect of the employers instructions and in knowledge of the associated risks.

Question 42

Morris v Murray (1990)

Answer 42

If you willingly put yourself in harms way, then you cannot claim negligence.

Question 43

Ashton v Turner (1981)

Answer 43

‘Ex turpi causa’ is not a defence but is a bar to an action.

Question 44

Pitts v Hunt (1990)

Answer 44

If you act ‘Ex turpi causa’ you cannot claim negligence.

Question 45

Revill v Newbury (1996)

Answer 45

‘Ex turpi causa’ of someone else is not a defence for your own illegal action.

Question 46

‘Ex turpi causa’ meaning

Answer 46

“from a dishonourable cause an action does not arise”

(The claim would be defeated and not reduced in damages)

Question 47

Failure to act:

Answer 47

No duty for failing to act e.g saving someone in water.

Question 48

3 Defences for negligence:

Answer 48

1.Contributory negligence
2.Volenti Non Fit Injuria
3.Ex Turpi Causa

Question 49

Volenti Non Fit Iniuria - “to a willing person, injury is not done”

Answer 49

If someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party.

‘one who has invited or assents to an act cannot when suffers from it complain of it as a wrong’

This is not the same as consent but is more like a voluntary assumption of the risk. If successful it will be a complete defence for the defendant.